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Americans Elect Makes Plans to Broker the 2012 Presidential Election

Richard Winger and Mark B. identify a revealing section of the Americans Elect corporate bylaws recently posted online by the states of Nevada and Florida. The Americans Elect corporation, which aims to arrange the election of its own candidates for President and Vice President of the United States, imagines a circumstance in which Americans Elect [“AE”] wins one or more states but not enough to win the presidency for itself. What will its designated electors do then?

Elector agrees that Elector shall remain unpledged until convening of votes for the Electoral College, with the exception of the following conditions:

a. Plurality or Majority Vote for AE Ticket: If the AE ticket receives more votes nationally than any other ticket, the Elector shall solely vote in the affirmative for the AE nominees and for no other candidate;

b. Coalition Agreement: If the AE ticket receives fewer popular votes nationally than the ticket of at least one of the major political parties but no party has attained a majority of the national popular vote and the AE delegates have convened in the Convention after the general election but before the Electoral College vote and endorsed a candidate of either major political party on such terms as may be reflected in the vote of endorsement, the Elector shall vote solely for the candidates as instructed by the Delegates and for no other candidate.

Under the law, of course, presidential electors are free to support whichever candidate they please. But according to the bylaws, Americans Elect will require its electors to sign a contract agreeing to the above plan or to pay a penalty of half a million dollars:

Failure to comply with this agreement shall result in the automatic termination of the Elector and substitution therefor with the alternate elector, in view of the national effort and costs to AE to attain ballot access for the AE ticket, which is not susceptible of easy calculation, the parties agree that the elector shall be liable to AE in the amount of $500,000 in liquidated damages if the Elector violates this agreement.

The second scenario envisioned by Americans Elect leadership, in which Americans Elect brokers a “coalition agreement,” only requires Americans Elect to win one state. Consult an electoral college map for 2012 and think about the possibilities. If Americans Elect won a relatively small state in which independent candidacies have succeeded before, such as Maine with 4 electoral votes or Minnesota with 10 electoral votes, then it could throw the election to the Republican or to the Democratic candidate if the electoral vote margin between Republicans and Democrats is close. If Americans Elect won just one large swing state, such as Ohio, Pennsylvania, Florida or California, then its plan for brokering the election of the next President of the United States would be guaranteed. Americans Elect has already gained ballot status in multiple states, and it has been directing the majority of its resources to win access in the state of California with its 55 electoral votes.

For those who say “Americans Elect can’t possibly think they’ll win this thing. What do they want?” the bylaws provide one possible answer: a seat at the negotiating table in November and December of 2012, with the occupancy of the most powerful position in the world at stake. With the application of some careful strategy, the Americans Elect corporation could be in a position to obtain policy concessions of all sorts, even if it loses the popular vote disastrously.

In such a circumstance, the rules by which Americans Elect would choose a major presidential candidate to endorse is of central importance. If the rules give control to the Americans Elect delegate pool (which any registered voter — sort of — can join), then there would be some aspect of democracy to the endorsement. However, if the rules give primary control to the Americans Elect corporate leadership (which according to bylaw Article 4 appoints itself and cannot be removed by delegate vote), then the unelected leaders of this corporation would be in a position to decide the outcome of a presidential election — and to obtain favorable terms for tipping the outcome in one direction or another.

The rules for an Americans Elect endorsement are not specified in the bylaws — and to date Americans Elect hasn’t even posted these bylaws on its own website. Now is the time to asking Americans Elect questions about those rules. Pay attention to Americans Elect’s answers… or lack of answers.

As part of an effort to provide direct feedback to Americans Elect and give them a chance to explain themselves, and because Americans Elect makes a show of inviting the American people to “ask us anything,” I’ve spent the better part of a year trying to initiate a dialogue with Americans Elect, although it has never responded to my questions or overtures.

“In the event that Americans Elect fails to gain a plurality or majority of votes and no party wins a majority of the popular vote in the presidential election of 2012, the Americans Elect bylaws declare that a second convention of Americans Elect will take place in which Americans Elect will endorse one of the major party candidates. While the bylaws spell out the details of a number of other processes, they do not describe either in broad strokes or in detail the process for making such an endorsement. What is that process?”

If I receive a response to this question, I will share it with you in the comments section for this article. If you do not find a response in the comments section, it means Americans Elect has not given me a response.

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About the authorJim Cook

I haven't been everywhere, but I've lived lots of places in the USA: the North, the South, the East, the West, and places in between. Every place I've been, I've seen acts large and small of kindness, callousness and disregard. Here we are. What will we do?

Someone in the comments at Ballot Access News brought up an interesting point:

“I hope they create a situation that the media will present to the public as a big mess, but which will actually be a very healthy, and long overdue, reconfiguration of national that will have influence politics for decades to come.”

Let’s say they do win a state or a few, and they end up in a negotiation over electoral votes because no one has gained a majority in the election. Although of course the secrecy and influence of the wealthy really isn’t a good thing, it will be the same assuming either the Democrats or Republicans win or there is some kind of deal in the House, the only difference being that the popular vote will be ignored (as sometimes does happen, like in 2000) in the latter scenario. But it could be a useful shakeup of American politics that shifts the way we do things and maybe wakes some people up from this weird lack of political creativity that is going on in our country.

I think you’ve said something similar about Americans Elect wrt the two party system. So, although I am EXTREMELY skeptical of it and would prefer to see a more grassroots form of change, this could have its upsides.

Seems like the By-Laws leave out the possibility or don’t fully consider the fact that in a three-way horse race that AE could be 3rd in the national vote and still be ahead, or even have a majority, in electoral votes by way of winning a plurality in a certain # of states.

Suppose they do win a large state, or two! Get-out-the-vote efforts in an online poll should not be determinant of the American Presidential election. The more I think about this, the more worried I become.

I only hope the delegate pool becomes too large to easily swing, (No Labels membership is not a hopeful comparison.) or that some vigilant mainstream journalists expose this plan and the public pressures AE to stop.

Thanks, Jim, for shining a spotlight on this. BAN picked it up; perhaps others will hear about it from them.

I think you are muddying the waters a little bit here. An online poll will not determine any presidential election. It might select a particular candidate in the case of AE, but not a general election winner.

So we need some vigilant mainstream journalist to “expose” AE?! How about if journalists would spend a lot of time exposing the undue influences within the major parties and gross amounts of money needed for candidates to be “viable”?

Don’t sweat it. When AE is on the ballot and there is a nomination there will be buckets of ink (or terabytes of news) written on the subject.

I sympathize with your critique of the corruption of the two major parties and their corruption! Still, whatever the benefits of a shakeup in the two-party system, I do believe someone needs to expose AE. ‘Expose’ is a word I would not use if they had made these facts available on the AE website, instead of surrendering them only when required by law. As a delegate who still believes in the project, despite my growing and growing doubts, I’m disappointed in them.

The by-laws state that an online “convention” will be held to determine whether Obama or the Republican gets the AE electoral votes. And these “conventions” are just polls, hopefully with only verified registered voters, but still are online polls. If the number of delegates is enough to give either candidate a needed majority, that would indeed be deciding the election. But, you are right- if they make 50-state ballot access, buckets of ink indeed. Time will tell what happens!

In 2012, The National Popular Vote bill could guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

Every vote, everywhere, would be politically relevant and equal in presidential elections.

All the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC. The bill would take effect when enacted by states possessing a majority of the electoral votes– enough electoral votes to elect a President (270 of 538).

The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for president. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

The bill has passed 31 state legislative chambers in 21 small, medium-small, medium, and large states, including one house in AR, CT, DE, DC, ME, MI, NV, NM, NY, NC, and OR, and both houses in CA, CO, HI, IL, NJ, MD, MA ,RI, VT, and WA . The bill has been enacted by DC, HI, IL, NJ, MD, MA, VT, and WA. These 8 jurisdictions possess 77 electoral votes– 29% of the 270 necessary to bring the law into effect.

Americans Elect’s “Coalition Agreement” is perhaps the smartest and shrewdest aspects of the entire strategy. AE surely knows it is very unlikely to win the election. As such it would be vulnerable to charges of playing a “spoiler” role. The contingency plan to broker an outcome in the Electoral College gives AE a well-thought-out goal to aspire to short of winning the election, thus defusing spoiler accusations. Entering a coalition with one of the major parties after the election would strengthen AE’s ability to establish itself as a viable and permanent third party.

The reality is it will be considerably more difficult to reach the coalition plan than simply winning electoral votes in one or two states. The 1968 Nixon-Humphrey contest was one of the closest in history. Even winning five states and 46 electoral votes, George Wallace was 32 electoral votes short of being able to broker an Electoral College outcome. He could have carried the three additional Southern states where he came in second and would still have fallen short.

Wallace won 14% of the popular vote, mostly concentrated in the South. With its support spread more evenly across the country, an AE ticket would probably need 25% or more of the national vote to carry any states. Were AE to win one medium-size or large state, it would have to be a state subtracted from the ticket that would have reached 270 votes with that state. Taking a state away from a ticket that already had fewer than 270 votes won’t make AE a broker. Its national appeal has to be strong and broad enough not to make AE a “spoiler” within individual states.

And whether an AE post-election convention could even control its electors is an open question. There aren’t any definitively binding legal or constitutional constraints on how electors cast their votes. They would most likely look to the candidate they are pledged but ultimately could cast their votes for any candidates they choose. Nevertheless, a brokered outcome would be one feature for beneficially shaking the system to its foundations.

I was aware that AE bylaws would levy $500,000 in liquidated damages against electors who failed to follow a post-election “Coalition Agreement” by AE delegates. I didn’t get into that because it doesn’t seem to be very enforceable. And I think it’s something that once AE realizes how draconian it looks and sounds will eventually be removed from the bylaws, or certainly substantially modified.

But the main point I wanted to make is that AE’s Coalition strategy is sound and shrewd and speaks well for their planning and deliberations. I also was pointing out that it will be a lot more difficult for AE to reach a position of “brokering the election of the next President of the United States” than Jim’s article would have us believe.

If Ron Paul wins the election for Presidential candidate with Americans Elect, he will be on the ballot, correct? And if Ron Paul is on the ballot, there is a much better chance of his being elected President then if he goes by way of the Republican convention, correct? So if you support Ron Paul you should want him to participate in the Americans Elect process (he is already in the lead and he is only a ‘draft’ candidate. If Paul is on the ballot, with a vice president who is a democrat (as required by AmericansElect.org), he would well win!

It is a time of fear in the face of freedom, a time of an emptying country and swelling cities, a time for the widening of previous roads and the opening of new paths, yet a time when these paths are mined by knowing algorithms of the all-seeing eye. It is the time of the warrior's peace and the miser's charity, when the planting of a seed is an act of conscientious objection. These are the times when maps fade, old landmarks crumble and direction is lost. Forwards is backwards now, so we glance sideways at the strange lands through which we are all passing, knowing for certain only that our destination has disappeared. We are unready to meet these times, but we proceed nonetheless, adapting as we wander, reshaping the Earth with every tread. Behind us we have left the old times, the standard times, the high times. Welcome to the irregular times.